- Securities Registration Statement (simplified form) (S-3/A)
08 Aprile 2011 - 9:19PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on April 8, 2011
Registration No. 333-173268
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
AMENDMENT
NO. 1
TO
FORM S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
PLUG POWER INC.
(Exact name of Registrant as specified in its charter)
Delaware
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22-3672377
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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968 Albany Shaker Road
Latham, New York 12110
(518) 782-7700
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrants Principal Executive Offices)
Gerald
A. Anderson
Chief Financial Officer
Plug Power Inc.
968 Albany-Shaker Road
Latham, New York, 12110
(518) 782-7700
(Name, Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
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Gerard L. Conway Jr., Esq.
General Counsel
Plug Power Inc.
968 Albany-Shaker Road
Latham, New York, 12110
(518) 782-7700
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Robert P. Whalen, Jr.,
Esq.
Thomas S. Levato, Esq.
Goodwin
Procter LLP
Exchange
Place
Boston,
Massachusetts 02109-2881
(617) 570-1000
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Approximate
date of commencement of proposed sale to the public:
From time to time after the
effective date of this registration statement
If the
only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following
box.
o
If any
of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, as amended, or the Securities Act, other than securities offered only
in connection with dividend or interest reinvestment plans, check the following
box.
x
If
this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same
offering.
o
If
this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering.
o
If this Form is a registration statement pursuant
to General Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following
box.
o
If
this Form is a post-effective amendment to a registration statement filed
pursuant to General Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following box.
o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of large accelerated filer, accelerated filer and smaller
reporting company in Rule 12b-2 of the Securities Exchange Act of 1934,
as amended, or the Exchange Act.
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Large accelerated filer
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o
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Accelerated filer
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o
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Non-accelerated filer
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x
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Smaller reporting company
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o
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The
registrant hereby amends this Registration Statement on such date or dates as
may be necessary to delay its effective date until the registrant shall file a
further amendment that specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of
the Securities Act, or until the Registration Statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
EXPLANATORY NOTE
Plug Power Inc. is
filing this Pre-Effective Amendment No. 1 to the Registration Statement on Form
S-3 (File No. 333-173268) solely for the purpose of amending the signature page
to correct an inadvertent omission, and no changes or additions are being made
hereby to the prospectus that forms a part of the Registration Statement.
Accordingly, the prospectus is being omitted from this filing.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other
Expenses of Issuance and Distribution.
The
following table sets forth the estimated costs and expenses, other than
underwriting discounts and commissions, payable by the registrant in connection
with the offering of the securities being registered. All the amounts shown are
estimates, except for the SEC registration fee.
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SEC
registration fee
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$
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11,610
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NASDAQ
Capital Market listing fee
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*
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Accounting
fees and expenses
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*
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Legal
fees and expenses
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*
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Transfer
Agent fees and expenses
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*
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Printing
and miscellaneous expenses
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*
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Total
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$
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*
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*
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The
amount of securities and number of offerings are indeterminable and the
expenses cannot be estimated at this time.
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Item 15.
Indemnification of Directors and Officers.
In accordance with
Section 145 of the Delaware General Corporation Law, Article VII of our amended
and restated certificate of incorporation provides that no director of Plug
Power shall be personally liable to Plug Power or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability (1)
for any breach of the directors duty of loyalty to Plug Power or its
stockholders, (2) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (3) in respect of unlawful dividend
payments or stock redemptions or repurchases, or (4) for any transaction from
which the director derived an improper personal benefit. In addition, our
amended and restated certificate of incorporation provides that if the Delaware
General Corporation Law is amended to authorize the further elimination or
limitation of the liability of directors, then the liability of a director of
the corporation shall be eliminated or limited to the fullest extent permitted
by the Delaware General Corporation Law, as so amended.
Article V of our
amended and restated by-laws provides for indemnification by Plug Power of its
officers and certain non-officer employees under certain circumstances against
expenses, including attorneys fees, judgments, fines and amounts paid in
settlement, reasonably incurred in connection with the defense or settlement of
any threatened, pending or completed legal proceeding in which any such person
is involved by reason of the fact that such person is or was an officer or
employee of the registrant if such person acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
Plug Power, and, with respect to criminal actions or proceedings, if such
person had no reasonable cause to believe his or her conduct was unlawful.
In addition, we
have entered into indemnification agreements with each of our directors. The
indemnification agreements require, among other matters, that we indemnify our
directors to the fullest extent permitted by law and advance to the directors
all related expenses, subject to reimbursement if it is subsequently determined
that indemnification is not permitted. Under these agreements, we must also
indemnify and advance all expenses incurred by directors seeking to enforce
their rights under the indemnification agreements and may cover directors under
directors and officers liability insurance.
II-1
Item 16. Exhibits.
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Description of the Document
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1.1(1)
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Form of Underwriting Agreement.
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3.1(2)
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Amended and Restated Certificate of Incorporation of Plug
Power Inc.
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3.2(3)
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Third
Amended and Restated By-laws of Plug Power Inc.
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3.3(2)
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Certificate
of Amendment to Amended and Restated Certificate of Incorporation of Plug
Power Inc.
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4.1(4)
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Certificate
of Designations, Preferences and Rights of a Series of Preferred Stock of
Plug Power Inc.
classifying and designating the Series A Junior Participating Cumulative Preferred
Stock.
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4.2(4)
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Shareholder Rights Agreement, dated as
of June 23, 2009, between Plug Power Inc. and Registrar
and American Stock Transfer & Trust Company, LLC, as Rights Agent.
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4.3(5)
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Form of
Common Stock Certificate of Plug Power Inc.
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4.4(1)
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Specimen
Preferred Stock Certificate and Form of Certificate of Designation of
Preferred Stock.
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4.5(1)
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Form of
Common Stock Warrant Agreement and Warrant Certificate.
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4.6(1)
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Form of
Preferred Stock Warrant Agreement and Warrant Certificate.
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4.7(1)
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Form of
Unit Agreement.
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5.1(6)
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Opinion
of Goodwin Procter LLP.
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12.1(1)
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Statement
of Computation of Ratio of Fixed Charges and Preference Dividends to
Earnings.
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23.1
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Consent
of KPMG LLP, Independent Registered Public Accounting Firm.
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23.2(6)
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Consent
of Goodwin Procter LLP (included in Exhibit 5.1).
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24.1(6)
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Power of
Attorney (included on signature page).
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___________________
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(1)
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To be
filed, if necessary, subsequent to the effectiveness of this registration
statement by an amendment to this registration statement or incorporated by
reference pursuant to a Current Report on Form 8-K in connection with an
offering of securities.
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(2)
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Incorporated
herein by reference to the registrants Annual Report on Form 10-K for the
period ended December 31, 2008 filed with the SEC on March 16, 2009.
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(3)
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Incorporated
herein by reference to the registrants Current Report on Form 8-K dated
October 28, 2009, filed with the SEC on November 2, 2009.
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(4)
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Incorporated
herein by reference to the registrants Registration Statement on Form 8-A
dated June 24, 2009, filed with the SEC on June 24, 2009.
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(5)
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Incorporated
herein by reference to the registrants Registration Statement on Form S-1/A
(File Number 333-86089) dated October 1, 1999, filed with the SEC on October
1, 1999.
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(6)
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Previously
filed as an exhibit to this Registration Statement on Form S-3 on April 1,
2011.
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Item 17.
Undertakings.
The
undersigned registrant hereby undertakes:
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(1)
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To file,
during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
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(i)
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To
include any prospectus required by Section 10(a)(3) of the
Securities Act;
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(ii)
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To
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form
of prospectus filed with the Securities and Exchange Commission, or the
Commission, pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration statement; and
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II-2
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(iii)
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To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
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provided,
however,
that paragraphs (1)(i),
(1)(ii) and (1)(iii) above do not apply if the information required
to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the Commission by the registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
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(2)
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That,
for the purpose of determining any liability under the Securities Act, each
such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
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(3)
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To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
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(4)
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That,
for the purpose of determining liability under the Securities Act to any
purchaser:
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(A)
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Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall
be deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement; and
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(B)
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Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or
(x) for the purpose of providing the information required by
Section 10(a) of the Securities Act shall be deemed to be part of
and included in the registration statement as of the earlier of the date such
form of prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be a
new effective date of the registration statement relating to the securities
in the registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the initial
bona
fide
offering thereof.
Provided, however
, that no statement made
in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of
sale prior to such effective date, supersede or modify any statement that was
made in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior to such
effective date.
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(5)
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That,
for the purpose of determining liability of the registrant under the
Securities Act to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary offering
of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such purchaser by
means of any of the following communications, the undersigned registrant will
be a seller to the purchaser and will be considered to offer or sell such
securities to such purchaser:
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(i)
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Any
preliminary prospectus or prospectus of the undersigned registrant relating
to the offering required to be filed pursuant to Rule 424;
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(ii)
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Any free
writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned registrant;
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(iii)
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The
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant; and
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(iv)
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Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
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II-3
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(6)
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That,
for purposes of determining any liability under the Securities Act, each
filing of the registrants annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plans annual report pursuant
to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of the securities at that time shall be deemed to be the initial
bona
fide
offering thereof.
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(7)
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That,
for purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to
Rule 424(b) (1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of this registration statement as
of the time it was declared effective.
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(8)
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That,
for the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial
bona fide
offering thereof.
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(9)
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To file
an application for the purpose of determining the eligibility of the trustee
to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed by
the Commission under Section 305(b)(2) of the Trust Indenture Act.
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Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-4
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Latham, State of New York, on the 8th day of
April, 2011.
PLUG POWER INC.
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By:
/
s/ Andrew Marsh
Name:
Andrew Marsh
Title:
President, Chief Executive Officer and
Director
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Pursuant to the requirements of the Securities Act of
1933, as amended, this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
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Andrew Marsh
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President, Chief Executive Officer and
Director
(Principal Executive Officer)
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April 8,
2011
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Gerald A. Anderson
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Chief
Financial Officer
(Principal
Financial and Accounting Officer)
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April 8,
2011
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George C. McNamee
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Chairman of the Board of Directors
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April 8,
2011
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Larry G. Garberding
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Director
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April 8,
2011
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Gary K. Willis
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Director
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April 8,
2011
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Maureen O. Helmer
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Director
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April 8,
2011
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*By:
/s/ Gerald A. Anderson
Gerald A. Anderson
Attorney in fact
II-5
EXHIBIT INDEX
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Description of the Document
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1.1(1)
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Form of
Underwriting Agreement.
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3.1(2)
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Amended and
Restated Certificate of Incorporation of Plug Power Inc.
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3.2(3)
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Third Amended and Restated By-laws of
Plug Power Inc.
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3.3(2)
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Certificate of Amendment to Amended
and Restated Certificate of Incorporation of Plug Power Inc.
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4.1(4)
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Certificate of Designations,
Preferences and Rights of a Series of Preferred Stock of Plug Power Inc.
classifying and designating the Series A Junior Participating Cumulative
Preferred Stock.
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4.2(4)
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Shareholder Rights Agreement, dated as
of June 23, 2009, between Plug Power Inc. and Registrar
and American Stock Transfer & Trust Company, LLC, as Rights Agent.
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4.3(5)
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Form of Common Stock Certificate of
Plug Power Inc.
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4.4(1)
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Specimen Preferred Stock Certificate
and Form of Certificate of Designation of Preferred Stock.
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4.5(1)
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Form of Common Stock Warrant
Agreement and Warrant Certificate.
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4.6(1)
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Form of Preferred Stock Warrant
Agreement and Warrant Certificate.
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4.7(1)
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Form of Unit Agreement.
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5.1(6)
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Opinion
of Goodwin Procter LLP.
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12.1(1)
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Statement
of Computation of Ratio of Fixed Charges and Preference Dividends to
Earnings.
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23.1
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Consent
of KPMG LLP, Independent Registered Public Accounting Firm.
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23.2(6)
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Consent
of Goodwin Procter LLP (included in Exhibit 5.1).
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24.1(6)
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Power of
Attorney (included on signature page).
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___________________
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(1)
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To be filed, if necessary, subsequent
to the effectiveness of this registration statement by an amendment to this
registration statement or incorporated by reference pursuant to a Current
Report on Form 8-K in connection with an offering of securities.
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(2)
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Incorporated herein by reference to
the registrants Annual Report on Form 10-K for the period ended December 31,
2008 filed with the SEC on March 16, 2009.
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(3)
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Incorporated herein by reference to
the registrants Current Report on Form 8-K dated October 28, 2009, filed
with the SEC on November 2, 2009.
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(4)
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Incorporated herein by reference to
the registrants Registration Statement on Form 8-A dated June 24, 2009,
filed with the SEC on June 24, 2009.
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(5)
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Incorporated herein by reference to
the registrants Registration Statement on Form S-1/A (File Number 333-86089)
dated October 1, 1999, filed with the SEC on October 1, 1999.
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(6)
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Previously
filed as an exhibit to this Registration Statement on Form S-3 on April 1,
2011.
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